Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. Robert S. Tafoya, Judge. No. DF8628A
Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, and Jeffrey D. Firestone, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Before Gomes, A.P.J., Dawson, J., and Hill, J.
It was alleged in an information filed January 29, 2008, that appellant Tony Akroush committed conspiracy to bring a controlled substance into a prison (Pen. Code, §§ 182, subd. (a)(1), 4573; count 1), conspiracy to sell, administer, furnish or give away a controlled substance to a state prison inmate (Pen. Code, §§ 182, subd. (a)(1), 4573.9; count 2) and possession of a controlled substance by a person confined in state prison (Pen. Code, § 4573.6; count 4), and that appellant had served four separate prison terms for prior felony convictions (Pen. Code, § 667.5, subd. (b)).
Except as otherwise indicated, all references to dates of events are to dates in 2008.
It was also alleged that appellant’s codefendant, Brandi Lyons, was appellant’s coconspirator in counts 1 and 2, and that she brought a controlled substance into a prison, in violation of Penal Code section 4573.
On August 11, pursuant to a plea agreement, appellant pled no contest to count 2 and the court dismissed the remaining counts and the prior prison term enhancement allegations.
On September 17, the court imposed the four-year upper term, to be served consecutively to the prison term appellant was serving at the time of the instant offense. Prior to imposition of sentence counsel informed the court appellant wished to withdraw his plea but that he (counsel) had determined there was “no factual or legal basis” for, and would not present, such a motion. After sentence was imposed, appellant himself asked to withdraw his plea, and the court denied the request.
On September 23, appellant filed a notice of appeal. In that document, he requested that the court issue a certificate of probable cause (Pen. Code, § 1237.5). On September 25, the court denied that request.
Initially, appellant’s appointed appellate counsel filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (Peoplev.Wende (1979) 25 Cal.3d. 436.) Thereafter, this court directed the parties to submit briefing on certain issues. In response, appellant, through counsel, filed a brief in which he argues that when, at sentencing, defense counsel indicated appellant wished to withdraw his plea but that counsel had concluded there was no basis for such a motion, the court erred in failing to conduct an adequate inquiry into the basis for counsel’s conclusion. In addition, appellant himself submitted a letter brief in which he argues that the court erred in denying his motion to withdraw his plea. We will reverse the judgment for the limited purpose of permitting appellant to make a motion to withdraw his plea.
FACTUAL AND PROCEDURAL BACKGROUND
Facts
According to the report of the probation officer, a report completed by the Investigative Services Unit at Kern Valley State Prison indicates the following: On October 21, 2007, at approximately 5:25 p.m., appellant, an inmate at Kern Valley State Prison, “returned from [a] visiting session” with Brandi Lyons and “notified prison staff he was having trouble breathing.” Appellant was transported to the Delano Regional Medical Center and the following day he underwent surgery, during which doctors removed from appellant’s throat a balloon containing what laboratory analysis later revealed to be 6.4 grams of a substance containing methamphetamine. Subsequently, “investigators reviewed a telephone call between [appellant] and Lyons which occurred on October 13, 2007.” “Analysis revealed [appellant] and Lyons conspired to bring drugs into Kern Valley State Prison.”
Procedural Background
On Monday, August 11, the court granted the defense motion to relieve Deputy Public Defender Dana Kinnison as appellant’s attorney of record, and attorney Michael Gardina, who had been retained, was substituted in to represent appellant. Moments later, a proposed plea agreement was put on record, but shortly after that Mr. Gardina informed the court appellant had had a “change of heart,” and indicated the defense would be ready for trial on the scheduled date of August 18. Mr. Gardina then asked for a recess for the purpose of discussing the case with the prosecutor. The court granted the request.
After the recess, Mr. Gardina informed the court the parties were at an impasse. Thereafter, the prosecutor told the court that Brandi Lyons, whom he described as “formerly a defendant before this court,” had been ordered to appear as a witness in appellant’s case, but had failed to appear. He asked that a $50,000 bench warrant be issued. At that point, the following colloquy occurred:
“MR. GARDINA: Your Honor, before the court orders that, my client has changed his mind, will enter the plea on the condition that the bench warrant be dropped.
“THE COURT: Well, what I was intending to do is issue a body attachment for any witness that has not appeared but then, well, what, what count or counts is he going to plead to?
“MR. GARDINA: Count two as agreed.
“[PROSECUTOR]:... I’m willing to let him plead to count two....”
Thereafter, appellant entered his plea, after confirming, inter alia, that he was doing so “freely, voluntarily after discussions with [his] attorney....”
On September 17, appellant appeared for sentencing, at which time the following colloquy occurred:
“THE COURT: [¶]... [¶] Is there any legal cause why we cannot proceed today?
“MR. GARDINA: No legal cause, your Honor, except my client wanted me to put on the record that he did want to set aside his plea; however, I have discussed with him this case, and it is my opinion, based on the evaluation of the entire case, there is no factual or legal basis for that motion.
“THE COURT: The record will reflect it is his desire to set aside the plea.
“MR. GARDINA: Yes.
“THE COURT: Thank you. [¶] Anything else?
“MR. GARDINA: No, your Honor.”
Thereafter, the court imposed sentence as indicated above, at which point the following colloquy occurred:
“[APPELLANT]: Your Honor, I would like to withdraw my plea. I would like to stipulate why I would like to withdraw my plea.
“THE COURT: The request is denied. Your counsel has spoken on your behalf, and I have made my ruling. Your request to withdraw your plea is denied.
“[APPELLANT]: But I’m allowed to say why.
“THE COURT: You can go ahead and stand up and say it then, if counsel will permit.
“MR. GARDINA: Yes, your Honor.
“THE COURT: Thank you. Go ahead.
“[APPELLANT]: Your Honor, I pled guilty only to stop a bench warrant out on my girlfriend’s name. That plea is invalid because of that right. My rights have been violated. My girlfriend’s rights have been violated. The 60 day to trial has been violated. That was from... January 7 to March 24th. I never waived time until March 24th. That is over 60 days, okay? What else? Everybody told me that my prison priors are going to be held against me if I go to trial and lose. Those charges are unsubstantiated. You dropped them during the preliminary hearing. The conspiracy to distribute you dropped during the prelim. The prosecution kept inflating charges against me to get me to plead guilty, kept trying to hold my girlfriend hostage against me to plead guilty. What’s next, they are going to throw my mom in handcuffs and make me plead guilty?
“THE COURT: Anything else?”
“[APPELLANT]: No, sir.
“[THE COURT]: Thank you.
“MR. GARDINA: Thank you, Judge.”
DISCUSSION
Appellant contends “the trial court’s handling of appellant’s request to withdraw his plea was erroneous.” As best we can determine, appellant’s claim is that the trial court erred in failing to inquire adequately into trial counsel’s refusal to present a motion to withdraw appellant’s plea. Appellant bases this argument in large part on People v. Brown (1986) 179 Cal.App.3d 207 (Brown).
The People counter that the absence of a certificate of probable cause precludes appellate review, and that in any event, appellant’s claim fails on the merits. We first address the merits of appellant’s argument.
Counsel’s Refusal to Present the Plea Withdrawal Motion
In Brown, trial counsel informed the court at sentencing that the defendant wanted to withdraw his plea of nolo contendere, but that in her opinion there was no “legal basis” for such a motion, and she was not making the motion for him. (Brown, supra, 179 Cal.App.3d at p. 211.) The defendant told the court that at the time he entered his plea “a death [had him] shook up” (id. at p. 213) and he “wasn’t in the right frame of mind” (id. at p. 211). He asked the trial court if he could withdraw his plea and obtain another attorney, but the trial court refused to grant either request. (Id. at pp. 211-213.)
The appellate court stated “[i]t was defendant’s right to be represented by counsel at all stages of the proceedings”; “[i]t was improper to permit defendant to bring his motion in pro. per. while he was still represented by counsel and he had not waived his right to counsel”; and “[d]efendant was entitled to have the motion presented to the court by his attorney of record.” (Brown, supra, 179 Cal.App.3d at pp. 214, 215.) The court held, the defendant was “deprived of his right to make an effective motion to withdraw his plea....” (Id. at p. 213.) In so holding, the court stated that it was not suggesting that counsel is required to make a frivolous motion or “compromise accepted ethical standards.” (Id. at p. 216.)
People v.Osorio (1987) 194 Cal.App.3d 183 (Osorio) followed Brown. There, defense counsel informed the court at sentencing that defendant Osorio wanted to withdraw his plea and that Osorio had indicated to counsel he wanted to withdraw his plea because “‘he didn’t understand what he was pleading to when he entered his plea’” (Id. at p. 186). Trial counsel indicated there were “‘grounds to withdraw the plea,’” but refused, in “‘good conscience,’” to bring the motion because withdrawal of the plea would result in reinstatement of counts dropped under the plea agreement. (Ibid.) Unlike the defendant in Brown, Osorio did not ask the court to appoint substitute counsel. On appeal, this court, relying in large part on Brown, determined that the case should be remanded to allow Osorio to bring a motion to withdraw the plea. (Id. at pp. 188-189.)
Brown and Osorio thus teach as follows: A criminal defendant has a right to bring a nonfrivolous motion to withdraw a plea and he or she has a right to be represented by counsel in doing so, but no attorney may be compelled to bring such a motion if to do so would compromise accepted ethical standards or if the attorney believes in good faith that such a motion would be frivolous. Where a criminal defendant wishes to move to withdraw his or her plea and provides a nonfrivolous basis for doing so, an attorney may not refuse to present such a motion on the grounds that it is unlikely such a motion would be granted or that withdrawal of the plea would not be in the defendant’s best interests.
Although framed in terms of the adequacy of the court’s inquiry into counsel’s refusal to present a plea withdrawal motion, we construe the essence of appellant’s argument to be the claim that he was entitled to have his motion to withdraw his plea presented to the court by his attorney of record, and that appellant was deprived of this right. This claim has merit. In his rambling statement to the court, appellant indicated, inter alia, that he pled guilty under the duress of the prospect of his girlfriend going to jail if he did not plead guilty. Duress or any other factor overcoming a defendant’s exercise of free judgment at the time of the plea may constitute good cause for withdrawal of plea. (People v. Cruz (1974) 12 Cal.3d 562, 566.) Although not an explicit statement that his free will was overcome, appellant’s statement was sufficient to establish nonfrivolous grounds for a motion to withdraw the plea. (Cf. Brown, supra, 179 Cal.App.3d at pp. 211, 213 [defendant stated he was “shook up” and not “in the right frame of mind” at time of his plea].) Thus, as in Brown, counsel’s refusal to present such a motion deprived appellant of his right to bring a nonfrivolous plea withdrawal motion.
The People argue that a motion to withdraw appellant’s plea would have been frivolous, based on counsel’s statement that “there is no legal or factual basis for [such a] motion.” This statement, however, is similar to the assertion by the defense counsel in Brown: “ ‘I don’t believe there is any legal basis at this time for [defendant] to move the court to withdraw his plea.’” (People v. Brown, supra, 179 Cal.App.3d at p. 211.) As in Brown, appellant’s statement was sufficient to establish nonfrivolous grounds for a plea withdrawal motion, notwithstanding the claim by counsel of the lack of a “basis” for a such a motion.
The People also argue that Brown is distinguishable from the instant case because here, “the court permitted appellant to participate as cocounsel with Mr. Gardina’s consent....” In Brown, the People point out, the court based its conclusion that appellant had been deprived of his right to effectively present his motion in part on the following: the defendant “did not represent himself,” and thus “[a]s the trial court found, there was no ‘hiat[u]s in representation’” (Brown, supra, 179 Cal.App.3d at p. 213); “Defendant here had cocounsel of record and, he, himself, had not been accorded status as counsel” (id. at p. 214); and “nor can defendant be deemed to have sought and received permission to participate in the conduct of the case” (ibid.).
However, immediately after the last statement quoted above, the Brown court stated the following: “The trial court may permit such participation by a defendant but ‘should not permit a litigant both to have counsel and to actively participate in the conduct of the case (as by conducting examination of witnesses, interposing objections, arguing points of law or of fact, addressing the jury, etc.) unless the court on a substantial showing determines that in the circumstances of the case the cause of justice will thereby be served and that the orderly and expeditious conduct of the court's business will not thereby be substantially hindered, hampered or delayed.’ [Citation.] No such showing was made here. In any event, the court’s granting defendant mere permission to ‘speak’ did not purport to confer on him status as cocounsel.” (Brown, supra, 179 Cal.App.3d at p. 214.) These same considerations apply here. As in Brown, the trial court here did not grant appellant cocounsel status.
Having concluded that appellant was deprived of his right to make an effective motion to withdraw his plea, we turn to the question of the proper disposition. In Brown the court remanded the matter to allow the defendant to make a motion to withdraw his plea “in a manner consistent with the views expressed in [the] opinion.” (Brown, supra, 179 Cal.App.3d at pp. 216-217.) In addition, the appellate court, noting that appellant had requested appointment of substitute counsel, directed the trial court, in the event counsel persisted in his refusal to present a plea withdrawal motion, to determine, under People v. Marsden (1970) 2 Cal.3d 118, whether substitute counsel should be appointed. (Brown, supra, 179 Cal.App.3d at p. 216.) In Osorio, there was no indication the defendant made a Marsden motion, and this court did not direct the court to entertain such a motion on remand, but this court’s disposition was otherwise identical to that in Brown.
A motion for appointment of substitute counsel is commonly referred to as a “Marsden motion.”
Appellant argues that, as the court did in Brown, this court should remand the matter to allow appellant to make a motion to withdraw his plea. We agree.
Appellant further argues that we should direct the trial court to conduct an inquiry of counsel “in the manner of a Marsden hearing to determine whether appointment of new counsel to prosecute appellant’s motion for new trial [sic] is appropriate.” (Italics added.)
It is not at all clear what appellant means by an inquiry “in the manner” of a Marsden hearing. It is clear that it would be inappropriate to direct the trial court to conduct a Marsden hearing should counsel persist in refusing to present appellant’s motion. (See People v. Lara (2001) 86 Cal.App.4th 139, 155 [Marsden motion is “the inappropriate vehicle in which to consider appellant’s complaints against his retained counsel”].) We need not direct the court to conduct any particular sort of inquiry on remand. It will suffice here to reiterate that an attorney is not required to make a frivolous motion or “compromise accepted ethical standards” (Brown, supra, 179 Cal.App.3d at p. 216), and to note that a criminal defendant has the right to discharge retained counsel, unless “discharge will result in ‘significant prejudice’ to the defendant [citation], or if it is not timely, i.e., if it will result in ‘disruption of the orderly processes of justice’ [citations].” (People v. Ortiz (1990) 51 Cal.3d 975, 983.)
Certificate of Probable Cause
“An appeal following a guilty or no contest plea which challenges the validity of the plea is not operative unless the defendant obtains a certificate of probable cause pursuant to Penal Code section 1237.5.” (People v. McEwan (2007) 147 Cal.App.4th 173, 175.) The People argue that appellant’s challenge to counsel’s failure to present a plea withdrawal motion is, in essence, an attack on the validity of his plea. The People base this claim on the principle that if an appellate challenge “is in substance a challenge to the validity of the plea,” “the appeal [is] subject to the requirements of section 1237.5” (People v. Panizzon (1996) 13 Cal.4th 68, 76.) There is no merit to the People’s contention.
In Osorio, the court stated that where a motion for withdrawal of the plea has been made in which it is alleged there is good cause for withdrawing the plea based on events “leading up to the plea itself,” and the motion is denied, “appeal from the denial … is tantamount to an attack on the validity of the plea itself,” and therefore compliance with Penal Code section 1237.5 is required. (People v. Osorio, supra, 194 Cal.App.3d at p. 187.) However, the court in Osorio held that the defendant’s appeal was an “attack[] [on] the failure of counsel to file the motion in the first instance,” and the relief requested by the defendant--remand to permit the defendant to file a motion to withdraw the plea--did not attack the validity of the plea and therefore a certificate of probable cause was not required to raise the issue. (Ibid.) Appellant too argues that defense counsel did not present his motion to withdraw the plea, and he seeks essentially the same relief as that sought by the defendant in Osorio. Thus, the instant appeal does not in substance challenge the validity of the plea.
The People place some reliance on People v. Emery (2006) 140 Cal.App.4th 560. In that case the defendant argued on appeal that the trial court erred by denying his request to continue the sentencing hearing so his counsel could investigate whether grounds existed to withdraw the defendant’s no contest plea. However, the defendant did not obtain a certificate of probable cause. In holding that the appeal should be dismissed, the court reasoned that “in challenging the trial court’s refusal to grant the continuance motion, defendant is in substance challenging the validity of the plea, which requires a certificate of probable cause as a prerequisite to appeal.” (Id. at p. 564.)
The court “disagree[d] with the reasoning of Osorio,” stating, “The sole basis for the appeal in Osorio was the claim that trial counsel was ineffective in refusing to file a motion to withdraw the appellant’s guilty plea. [Citation.] The validity of that claim of error was dependent upon the validity of the guilty plea. In substance, the claim of error was an attack on the plea itself. Hence, a certificate of probable cause should have been required.” (People v. Emery, supra, 140 Cal.App.4th at p. 565.)
We respectfully disagree with the Emery critique of Osorio. Here, as demonstrated above, the error complained of is counsel’s failure to present the motion to withdraw the plea. As in Osorio, consideration of that claim of error does not require consideration of the validity of the plea, and the remedy for the error is not to vacate the plea, but to remand for further proceedings. We therefore conclude, as did this court in Osorio in analogous circumstances, that the instant appeal is not a challenge to the validity of the plea, and therefore a certificate of probable cause was not required.
Denial of Request to Withdraw Plea
As indicated above, appellant himself argues the court erred in denying his request to withdraw his plea. This claim is a challenge to the validity of the plea, and, because appellant did not obtain a certificate of probable cause, is not cognizable on appeal. (People v. McEwan, supra, 147 Cal.App.4th at p. 175.)
DISPOSITION
The judgment is reversed for the limited purpose of permitting appellant within 30 days after the remittitur is filed in the trial court to make a motion to withdraw his plea of no contest in a manner consistent with the views expressed in this opinion. If the superior court grants such a motion, the superior court shall reinstate the original charges, if the prosecution so moves, and proceed to trial or make other appropriate dispositions. If no such motion to withdraw the no contest plea is filed by appellant within the time limit set forth above, or if the motion to withdraw appellant’s plea is denied, the superior court is directed to reinstate the original judgment.